CAT/C/56/D/562/2013 criminalization of homosexuality alone is an insufficient ground for a finding of a personal risk of torture. The State party refers to the Committee’s jurisprudence in K.S.Y. v. The Netherlands, in which it found that the return of an individual claiming to be homosexual to Iran would not violate article 3 of the Convention, noting “a number of contradictions and inconsistencies in his account of past abuses at the hands of the Iranian authorities, as well as the fact that part of his account has not been adequately substantiated or lacks credibility”.13 The State party distinguishes the complainant’s circumstances from those of the complainant in Mondal v. Sweden, in which the Committee considered that the return to Bangladesh of an individual alleging to be homosexual would constitute a breach of article 3 of the Convention, because a death fatwa had been issued against him and he had provided credible evidence of past persecution and pursuit by the police. 14 The general situation of human rights in Uganda is insufficient by itself to substantiate the complainant’s allegations that he would personally be at risk if returned there. 5.8 The State party concludes that the application is unfounded and requests the Rapporteur for new complaints and interim measures to lift the interim measures. Complainant’s comments on the State party’s observations on admissibility and the merits 6.1 In his comments dated 22 September 2014, the complainant contests the State party’s assertion that he has not exhausted domestic remedies. He asserts that he was ineligible to file a humanitarian and compassionate application for a one-year period after 19 October 2012, and that his deportation was scheduled for 7 October 2013, before the one-year period expired. He maintains that he is still ineligible to file a humanitarian and compassionate application because the first step of the humanitarian and compassionate application process, which lasts 28 months, does not allow for a stay of removal. Moreover, he maintains that under the State party’s current legislation, the Canadian Immigration authorities are unable to take into consideration the risk at which he would be if returned to Uganda based on the fact that he is gay and that he is wanted by the Ugandan authorities. He therefore maintains that his application under humanitarian and compassionate grounds would most certainly be rejected.15 6.2 In additional comments dated 3 October 2014, the complainant expresses his disagreement with the State party’s comment that the decision of the Federal Court reinforces its position that there is no evidence that the complainant would face a personal and real risk of torture in Uganda. He refers to the Committee’s jurisprudence according to which (a) judicial review of a negative refugee protection decision or the pre-removal risk assessment do not provide an effective remedy; and (b) “the State party should provide for judicial review of the merits, rather than merely of the reasonableness, of decisions to expel an individual where there are substantial grounds for believing that the person faces a risk 13 14 15 8 homosexuality-acts-heavy-toll. See communication No. 190/2001, K.S.Y. v. The Netherlands, decision adopted on 15 May 2003, para. 7.3. See communication No. 338/2008, Mondal v. Sweden, decision adopted on 23 May 2011. The author refers to the Citizenship and Immigration Canada website, which under the section entitled “Limitation on assessment of risk in an in-Canada Application”, indicates that “Section 25(1.3) of IRPA states: ‘… the Minister may not consider the factors that are taken into account in the determination of whether a person is a Convention refugee under Section 96 or a person in need of protection under Subsection 97(1) but must consider elements related to the hardships that affect the foreign national’. This means that you must consider all the evidence using the hardship test but you do not conduct a risk assessment such as would be done by the IRB or in a Pre-removal risk assessment”. Available at www.cic.gc.ca/english/resources/tools/perm/hc/processing/hardship.asp.